Thomas K.P vs Director General Of Police
2021 Latest Caselaw 12575 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                  &
                  THE HONOURABLE MR.JUSTICE K. BABU

     THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
                       WP(CRL.) NO. 130 OF 2021
PETITIONER:

          THOMAS K.P., AGED 30 YEARS,
          S/O.PHILIP K.T., KAYUNNU PANA, KALANKI P.O.,
          KANNUR DISTRICT-670705.

          BY ADV V.VISAL AJAYAN

RESPONDENTS:

    1     DIRECTOR GENERAL OF POLICE,
          DGP OFFICE, THIRUVANATHAPURAM-695001.
    2     SUB INSPECTOR OF POLICE,
          ULIKKAL POLICE STATION, MAPPARA ROAD,
          ULIKKAL, KANNUR DISTRICT-670705.
    3     SISTER SINI,
          IN CHARGE OF KRISTU DASI CONVENT KALANGI,
          KALANGI P.O., KANNUR DISTRICT-670705.
    4     THE PROVINCIAL SUPERIOR,
          IN CHARGE OF KRISTU DASI GENERALATE, NETHAJI NAGAR
          COLONY, KOTTOOLI P.O., CALICUT, KERALA, INDIA, PIN-
          673016.

          SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR


     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 27.05.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P (Crl.) No. 130 of 2021
                                             2




                 ALEXANDER THOMAS & K.BABU, JJ.
                 ===========================
                      W.P (Crl.) No. 130 of 2021
                 ===========================
                    Dated this the 27th day of May, 2021

                                  JUDGMENT

ALEXANDER THOMAS, J.

The prayers in the afore captioned Habeas Corpus Writ

proceedings filed under Article 226 of the Constitution of India are as

follows:

"

I. Issue a writ of habeas corpus, to be issued against the respondents to produce the detenue "Jincy Xavier" before this Hon'ble Court and set her liberty free.

II. To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant."

2. Heard Sri.V.Vishal Ajayan, learned counsel appearing for

the petitioner and Sri.Saigi Jacob Palatty, learned Public Prosecutor

appearing for official respondents 1 & 2. In the nature of the order

proposed to be passed in this petition, notices to contesting

respondents 3 & 4 will stand dispensed with.

3. The case set up by the petitioner in this case is as follows:

that, the petitioner aged 30 years is self employed as a driver, and that

he makes his livelihood by lending out his vehicle Mahindra Jeeto W.P (Crl.) No. 130 of 2021

(mini compact van) for use, especially for transporation of goods and

groceries, etc. The alleged detenue Sister Jincy Xavier, aged 39 years,

is a nun belonging to the Catholic religious order who was in the Kristu

Dasi Convent at Kalangi, Kannur, and the 3 rd respondent is the nun in

charge of the local convent where the alleged detenue was earlier

residing and R-4 is the provisional Superior of the said religious order

at Kottooli, Kozhikode. That, the 3rd respondent and the alleged

detenue used to hire the petitioner's vehicle for bringing in groceries

and other provisions from the market and shops to the local convent,

and that there arose a relationship between the two, and that now the

alleged detenue has been forcefully transferred from the local convent

of the 3rd respondent at Kalangi to the provisional Superior's convent

of the 4th respondent at Kottooli, Kozhikode, and that she is under the

illegal detention of the 4th respondent and against her wishes, etc.

4. Sri.Saigi Jacob Palatty, learned Public Prosecutor was

earlier to get instructions in the matter. The learned Prosecutor would

submit on the basis of instructions of the 2 nd respondent Sub Inspector

of Police (SHO) that the police authorities could ascertain that the

alleged detenue-Sister Jincy Xavier, aged 39 years, is a nun and is

presently residing at the Convent of the 4th respondent provincial

Superior at Kottooli, Kozhikode, and that the statement of the alleged W.P (Crl.) No. 130 of 2021

detenue has also been taken wherein she has stated that she had

voluntarily accepted the transfer from the 3rd respondent's local

convent at Kalangi, Kannur, to the 4 th respondent provincial

Superior's convent at Kottooli, Kozhikode, and that she is voluntarily

residing in the convent of the 4th respondent at Kottooli, Kozhikode,

and that she wants to continue in her religious profession, and that

she is not under the illegal detention of anyone.

5. Since, the counsel for the petitioner wanted some

proactive steps to be taken by the Court to ascertain the correctness of

the factual submissions made on behalf of the 2 nd respondent SHO,

this Court had directed on 7.5.2021 that the 2 nd respondent SHO may

take steps to ensure that this Court is enabled to interact directly with

the alleged detenue-Sister Jincy Xavier, through video conferencing.

When the case was taken up today (27.5.2021) we felt that interacting

with the alleged detenue on a matter of this nature through the video

conferencing of the Court system which is accessable to all, may not be

the appropriate procedure as it may have serious privacy issue as far

as the rights and interests of the alleged detenue is concerned. Hence,

we had suggested to both sides that learned Prosecutor and the SHO

may ensure that we are enable to interact directly with the alleged

detenue through video call on Whatsapp in the Chambers of the Court W.P (Crl.) No. 130 of 2021

and in the presence of the counsel for the petitioner and the learned

Prosecutor. This was agreed to both sides. Accordingly, the matter

was taken up in the Chambers today at 12.30 afternoon and the SHO

and the learned Prosecutor had arranged for a video phone call

through Whatsapp so as to enable us to interact directly with the

alleged detenue-Sister Jincy Xavier. We have thus directly interacted

with Sister Jincy Xavier, aged 39 years, in the presence of the counsel

for the petitioner and the learned Prosecutor, and she has apprised us

that she had joined the abovesaid Catholic religious order as a nun

aspirant at a very young age and that she has been continuing there

for quite a long time, and that she had voluntarily accepted the

transfer from the 3rd respondent's local convent at Kalangi, Kannur,

to the 4th respondent provincial Superior's convent at Kottooli,

Kozhikode, and that she is voluntarily residing in the convent of the 4 th

respondent at Kottooli, Kozhikode, and that she wants to continue in

her religious profession, and that she is not under the illegal detention

of anyone, etc.

6. Hence, we are convinced that the alleged detenue is not

under the illegal detention of anyone including the 3 rd and 4th

respondents, and that she is residing in the present place on her own

volition. Hence, the petitioner has miserably failed to make out even a W.P (Crl.) No. 130 of 2021

prima facie case of illegal detention, so as to warrant the invocation of

the high prerogative remedy of Habeas Corpus Writ. The petition fails

and will stand dismissed. However, there is no order to cost.

7. The Registry will forward copies of this judgment to

respondents 3 & 4 for necessary information. The Secretary to the

Office of the Advocate General will ensure that copies of this judgment

are duly forwarded to official respondents 1 & 2.

With these observations and directions, the above Writ

Petition (Criminal) will stand dismissed.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

K.BABU, JUDGE MMG W.P (Crl.) No. 130 of 2021

APPENDIX OF WP(CRL.) 130/2021

PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE SCREENSHOTS OF THE WHATSAPP COMMUNICATIONS BETWEEN THE PETITIONER AND DETENUE.

EXHIBIT P2 TRUE COPY OF THE SCREENSHOTS OF THE WHATSAPP OF THE PETITIONER EXHIBIT P3 TRUE COPY OF THE COMPLAINT MADE BY THE PETITIONER WITH THE SHO, ULIKKAL POLICE STATION DATED 03/05/2021.